Makgene and Another v S (A199/2016) [2019] ZAGPPHC 486 (17 September 2019)

Makgene and Another v S (A199/2016) [2019] ZAGPPHC 486 (17 September 2019)

The trial court failed to comply with the mandatory provisions of Section 93 ter (1) of the Magistrates' Court Act by not properly engaging the appellant or his legal representative regarding the appointment of assessors in the murder trial. The record did not reflect any waiver or appointment of assessors, nor did it indicate that the trial court was properly constituted. This failure rendered the conviction and sentence for murder invalid and they were set aside. Regarding the conviction for attempted murder, the evidence was found to be corroborated by independent witnesses and the appellant's claim of self-defence was not supported by the facts. The sentence imposed for attempted...

Citation
[2019] ZAGPPHC 486
Parties
Appellant: Jacob Makgene; Appellant: Vusi Mjwara; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 September 2019
Case Number
A199/2016
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
The appeal is upheld in respect of the murder conviction and sentence, which are set aside. The appeal is dismissed in respect of the attempted murder conviction and sentence, which are upheld.
Judges
Mokose, Munzhelele
Legal Topics
Murder Trial Procedure, Appointment of Assessors, Self Defence, Appeal on Conviction, Sentence Appropriateness
Criminal Law Civil Procedure Murder Trial Procedure Appointment of Assessors Self Defence Appeal on Conviction Sentence Appropriateness

Case Brief

Summary, issues, holding and outcome

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Parties

Jacob Makgene

Appellant

Vusi Mjwara

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the trial court complied with Section 93 ter (1) of the Magistrates' Court Act regarding the appointment of assessors in a murder trial.
  2. 2 Whether the failure to appoint assessors rendered the trial unfair and invalid.
  3. 3 Whether the conviction for attempted murder was correctly decided, particularly in relation to self-defence.

Ratio Decidendi

The trial court failed to comply with the mandatory provisions of Section 93 ter (1) of the Magistrates' Court Act by not properly engaging the appellant or his legal representative regarding the appointment of assessors in the murder trial. The record did not reflect any waiver or appointment of assessors, nor did it indicate that the trial court was properly constituted. This failure rendered the conviction and sentence for murder invalid and they were set aside. Regarding the conviction for attempted murder, the evidence was found to be corroborated by independent witnesses and the appellant's claim of self-defence was not supported by the facts. The sentence imposed for attempted...

Court Disposition

The appeal is upheld in respect of the murder conviction and sentence, which are set aside. The appeal is dismissed in respect of the attempted murder conviction and sentence, which are upheld.

Orders

  • The point in limine regarding count 1 (murder) is upheld.
  • The conviction and sentence in respect of count 1 are set aside.